Disorder in the Court: the Niqab and the Courtroom in Canada

A Toronto judge has recently ruled that a complainant in a sexual assault trial – who happens to wear the niqab, a face-covering worn by a small percentage of Muslim women – will have to uncover her face in order to testify. According to this article,

The judge, Ontario Court Justice Norris Weisman, determined he had the jurisdictional authority to make that ruling under the Canada Evidence Act, because it involves the manner in which the woman is to give testimony, the fundamental right of a defendant to make “full answer and defence” and the “traditional right” of an accused to face the accuser.

The decision will be challenged at the Superior Court of Ontario next month. There is a publication ban on details from the case, including the names of those involved, so most of the discussion happening about this is taking place without a whole lot of information. (Interestingly, one journalist has suggested that some of the information that she is not allowed to publish has made her think differently about the judge’s decision.)

The story hit the news this week, and not surprisingly, it didn’t take long to turn into an issue of “law against religion,” a “collision of two rights,” where Muslim women are painted as not quite compatible with Canadian society and legal systems.

Where to start? Well, first, it’s worth looking at the judge’s rationale for his decision. This article tells us that:

In October, Ontario Court Justice Norris Weisman reached his “admittedly difficult decision” to force the complainant to testify with her face bared after finding her “religious belief is not that strong … and that it is, as she says, a matter of comfort,” he wrote in his ruling.

This decision was, apparently, based on the complainant’s statement that “It’s a respect issue, one of modesty and one of … in Islam, we call honor [...] I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.” The judge also talked about learning “at the 11th hour” that the woman had “a driver’s license with her unveiled facial impression upon it.”

Although I don’t personally share the complainant’s opinions on niqab, I’m disturbed by the judge’s presumption that he had the authority to draw conclusions on her religiosity and on the religious and personal importance of the niqab to her. Moreover, the idea of religious “comfort” – whether or not niqab is seen as a religious obligation – should not be brushed aside, especially in a case dealing with sexual assault. I’m also concerned that the language around the “11th hour” revelation makes it sound as if the woman was being purposely deceitful and attempting to manipulate the court into allowing her to testify with her face covered. There might have been decent reasons for forcing the complainant to show her face (although I would likely still disagree), but making a decision based on judgments about her religious commitment seems really inappropriate.

While the niqab side of the equation has, of course, received a lot of scrutiny, news stories have reported comparatively little analysis from the trial about the other side of the issue, that is, the right of the accused to “face” their accuser. I’m no legal scholar (and if any of you are, please jump in here!), but I have to wonder to what degree this provision was ever meant to refer to a literal “face,” and whether it has more to do with being able to confront one’s accuser in person (regardless of how much of that accuser’s skin is visible.) According to one journalist, “There is no absolute right, in Canadian law, for a defendant and a witness to look upon one another during trial or even a preliminary hearing.” Claims made by the defense lawyers have pointed to the importance of judging the witness’s demeanor by her facial expressions; however, it is hard to argue that seeing the face of the witness will make or break their credibility. In fact, as law professor Faisal Kutty argues, the reliability of evidence based on demeanor is not only inherently questionable, but may be even more suspect if there are cultural or linguistic differences that come into play. (Note that we don’t know the cultural or ethnic background of the complainant, so it isn’t clear whether this is actually an issue here.) To the extent that demeanor is relevant, the defense’s insinuation that a face covering will erase all possible cues about its wearer’s emotions and intentions is somewhat perplexing, considering the amount of information that can still be gained through tone of voice and body language. Although facial expressions certainly do convey a lot of information, I also wonder how much of the hype around needing to see a person’s face to judge their credibility comes out of assumptions that women in niqab are all so oppressed by their clothing that they lose all individuality and ability to express themselves.

On that note, it probably goes without saying that much of the discussion in this case has painted the niqab as inherently indicative of oppression and patriarchal control over women’s lives. Quoting Sherene Razack, Kutty states that much of the talk that takes a hard line against niqab is symptomatic of a desire “to rescue the imperiled Muslim woman.” Illustrating that desire are some of the comments on the blog of journalist Antonia Zerbisias, who describes the situation by saying that “not only is this religious fundamentalism at its most extreme, it’s patriarchy at its worst.” Although, to her credit, Zerbisias continuously claims to be “grappling” with how to understand the story, she later talks about Muslim girls who “grow up and disappear into the long blackness,” perpetuating the image of the shrouded woman whose personality has been erased. In yet another post, arguing for the need to treat all victims and witnesses equally, she asks:

Does this [forcing a woman to show her face] doubly victimize –maybe even triply –some women? Yes. But that’s the price we pay for not being confined to the kitchen and nursery.

What bothers me here is her assumption that all women (“we”) experience oppression in the same way, and that patriarchal oppression is necessarily worse than oppression stemming from Islamophobia or racism. Might there be some women who might, in fact, prefer to remain in the kitchen and nursery, because they feel that this “price” is too high to pay? Yeah, it would be great if we could get rid of sexism and Islamophobia and racism and classism and all other forms of oppression that are affecting all of us, but if we’re talking about making trade-offs – accepting some forms of oppression in order to escape from others – then it’s probably best not to make assumptions about which trade-offs are best for which people.

A lot of the articles on this topic include the predictable photos of women in niqab, as passive figures that aren’t necessarily doing anything other than looking at the camera (see here and here for examples, and nope, I’m not going to play into the exoticised-niqabi-woman trap by posting one here.) What did impress me was this article, which actually had pictures of, get this, women in niqab doing stuff! One was testifying in court (apparently, it can be done), one was working as a pharmacist, and one was graduating from university. Definitely a welcome challenge to some of the other images out there.

The last issue that I wanted to raise is the way that a lot of the discussion on this topic links this specific situation with Canadian Muslims as a group. This article tells us that “In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases,” suggesting that the conflicts that have arisen in this case will be widespread through the Muslim community. Without wanting to belittle the importance of this particular case, I do worry that it is getting blown a little out of proportion, with readers starting to worry that all 580,000 of us are going to start coming into conflict with Canadian courts. Niqab also gets equated with particular levels of religiosity, rather than with particular religious interpretations; we are told that “Niqabs are traditional Muslim veils that cover everything but the eyes” and that “many pious females” wear it. Given the hype about this case representing a fundamental conflict between religious and legal rights in Canada, the implication is that all “traditional” and “pious” Muslims are potential threats to Canadian legal traditions, and may again make the mountain that’s resulted from this case’s molehill seem even bigger. (It’s also, of course, annoying that those of us who don’t choose to cover our faces may end up being assumed to be less religious.)

There’s still a lot of noise being made about this, and it will likely flare up again once the appeal happens in early March. We’ll keep you posted, insha’Allah! In the meantime, what are your thoughts on this?

I’m not up on my Canadian law, but in the U.S., at least, one of the major purposes of our Confrontation requirement is to allow the jury to assess the demeanor of the witness – reading eyes, vocal cues, and body language – to determine whether he or she is being truthful. (Whether juries are actually good at this is another question.)

It seems to me that very little of this is lost when the witness wears a niqab. Her eyes are still visible, the jury can still hear her voice, and her body language is still apparent. if that’s the concern, I see no problems with the niqab.

(And if xenophobia/etc. is the concern, I still see no problems with the niqab, just a problem with the detractors thereof.)

http://motherissues.wordpress.com Thorn

As someone who’s spent a lot of time dealing with women who’ve suffered sexual assault, I’ve been curious all along about the possibility that this rape was in part a religious hate crime, and I wonder about that factoring in. I do think the removal of the niqab is going to be revictimizing. I don’t know whether keeping it on would, as people keep mentioning, prevent the jury from honestly evaluating the accuser. The kind of comments coming from even professional journalists make me wonder how much additional jury bias and baggage there will be about this woman whether or no she shows her face.

Paula

I’m glad you brought this issue up, I’ve been following it for a while now. My first feminist instinct is to think that women involved in sexual assualt trials should be allowed to do whatever makes them ‘comfortable’, whether religiously motivated or not. Child witnesses often testify under modified conditions to lessen the stress of re-living trauma. I understood the bit about ‘amid fears about Muslim women coming forward in criminal cases’ to mean that other niqabi women would be reluctant to come forward if this precedent was set, which would be a second ‘secular’ reason for her to keep it on.

Muslim matters, I thought, missed the point by critizing the judge for having the gall to adjudicate the degree of the woman’s religious belief. We don’t know all the facts, but at some point someone had to make the call whether the practice was religious or not. I mean that there is a substantive difference between niqab and someone who shows up in a court room wearing a darth vader mask. Secondly, even if the judge had allowed the niqab to stay that wouldn’t have meant the issue wouldn’t have been referred to some other court by the defendent claiming his rights to fair trial had been violated. Maybe the judged hoped he was right about the comfort, not religious, niqab and he could side step the bigger question. Obviously it didn’t work out that way… we’ll have to see how this plays out.

Deena

Excellent article Krista! Very well written. I think relying on the “right of the accuser to ‘face’ the accused” argument is very weak. Such a literal interpretation of the law hopefully won’t be taken seriously by anybody. Honestly I would almost prefer any other argument because this argument is just silly and insults everybody’s intelligence.

I like the fact that even a pseudofeminist like Zerbisias – who sounds like she believes that conforming to western norms is a woman’s obligation rather than a right, essentially depriving her of the right to choose, which is the worst form of patriarchy – acknowledges that depriving her of the right to choose is revictimizing the victim. Hey, at least she’s not delusional. If you’re going to place the same opressive contraints on women that you have simultaneously been advocating against, at least own up to it. I personally do not agree with the Niqab but I am a firm believer in personal and religious freedom.

http://muslimahmediawatch.org/ Fatemeh

@ Paula: I think your point about the niqab vs. a Darth Vader point isn’t a valid one: some Islamic schools of thought support niqab, while others don’t. There are people for whom it is a religious issue rather than one of comfort. While Star Wars is pretty big, it isn’t a widely recognized religious belief, so the analogy doesn’t work.

Paula

sorry, i don’t think my point was clear. if we take seriously that every person has the right to decide what constitutes his or her own religious beliefs (which Canadian law also does), then we leave open the possibility that someone can use someone else’s practice in bad faith. ie. not out of a religious conviction. In this case, wearing the niqab generally isn’t the point at stake, it is whether for this woman at this time the niqab is a part of her constitutive religious beliefs. What religious accommodation doesn’t protect is some non-believer wearing niqab to avoid facing accused (in this case), turban instead of helmut, etc.

The judge in this case as far as I can tell was trying to assess whether the niqab in question was religiously motivated for this woman, which is what it comes down to when religious belief is only determined subjectively. I may be reading into MuslimMatters piece, but it seemed to me that he was advocating the right to wear niqab driven not out of this particular woman’s belief, but out of his own belief that niqab is a religiously sanctioned practice (which it is, but should only engage a protection on religious grounds when wedded to a believing practitioner). I hope that distinction is clear, I’ve been mulling this around for a bit, still not sure how best to make sense of it…

as a separate issue, does anyone know of a good blog dealing with muslim women and politics, preferably operating from this same as point of view as MMW?

http://www.mylifedump.com Zahid

The problem I have is that if there is a woman out there who has decided to do niqab and will do anything to safeguard it, why would she let the situtaion lead to court in the first place?

Court room is a place where lawyers tear apart everything to reach a verdict that is in their clients favor. Court room is not a private place where one gets to decide everything.

If she has her face shown on driver’s license, I believe she should be summoned to show her face but the judge should make sure no one in the courtroon can draw a sketch or take a picture.

Niqab is not an absolute requirement for muslim women so the argument here about modesty and religious beliefs has no ground.

Krista

@ Dani: Yeah, that was my understanding too about needing to assess the demeanour of the witness, and I agree that a. it should be possible to do this (as much as this is a reliable way of assessing it) even if she’s wearing niqab, and b. it’s questionable whether juries are actually able to read these cues properly (especially given the possible presence of cultural differences between the witness and jury members, as one of the articles I quoted brought up.)

@ Thorn: Great points. I think re-victimising is definitely a concern, as is the level of racism/Islamophobia that has been made evident by the discussion around this case.

@ Paula: I think your concern about the possibility of religious attire getting appropriate even by those who don’t follow that religion, in order to make use of possible “loopholes,” is valid. In that sense, I understand the relevance of the judge trying to determine the religious significance of the niqab for the woman in question. And as you mention, we don’t know all of the details of the judge’s reasoning for his decision.

On the other hand, at least from the information that we do have, I still think there was a lot lacking in the decision. For one thing, one of the articles mentioned that this woman has been wearing niqab for the past five years, which is obviously very different from someone just showing up at court and deciding to cover their face. In fact, even if there was no religious significance whatsoever, I would think it would probably be really scary to show one’s face in public for the first time in five years, which would be worth taking into consideration. Even if the woman doesn’t see it as a religious *obligation* per se, it’s obviously something that she has taken seriously for quite a while, something that she is committed to.

I’m also still concerned at the possibility that the judge interpreted the woman’s description of the niqab as a matter of “comfort” (and therefore not as a strict *requirement*) to mean that it’s less significant to the woman wearing it. There are a lot of religious practices that might not be required but still have a great deal of importance to the people practising, and should still be respected wherever possible.

The funny thing is, and this is just speculation, but I was just thinking now about how we don’t know exactly what information the judge based his decision on, and I was wondering if maybe the woman’s body language or tone of voice (in other words, her “demeanour” as the judge perceived it) was part of what the judge interpreted as reflecting an issue of comfort rather than obligation/commitment. How ironic would that be??

Krista

@ Deena: I totally agree that the literal interpretation of “facing” one’s accuser seems a little silly… As for Zerbisias, the one thing I appreciated is that she at least recognised where her analysis might be seen as problematic, and she seemed to have at least considered the ways that she would be imposing her views on other women (she also talked a couple times about how she was struggling with how to understand the issue.) I still definitely don’t agree with her analysis, but I also wouldn’t say she’s quite as bad as some of those other imperialist-feminists out there.

@ Zahid: As Fatemeh said, this woman deserves justice as much as anyone else who has experienced sexual assault. I don’t think it’s exactly her fault that the issue has ended up in court…

In terms of her driver’s licence, I don’t think it’s really the same thing, because there are a lot of situations where, for identification purposes, she would be able to ask for a female to look at the photo and at her face. We also don’t know what the circumstances were when she got the licence – maybe she contested that too, maybe she figured she wouldn’t have to show the photo often, etc. I don’t think that having her face exposed on a driver’s licence photo (or having to quickly show her face to confirm her identity) is the same as having to uncover her face to testify.

This blog isn’t the space to talk about whether niqab is required for Muslim women – as we know, there are different opinions, and even among scholars who don’t say it’s required, some still argue that it’s recommended. I personally don’t think it’s necessary (or even recommended), but I don’t think it’s up to us to make that decision for her – to say that we don’t think it’s required, therefore it’s not, therefore she shouldn’t wear it.

I said what i said because I knew I would be asked why do i have such a view for someone in naqab. Don’t get me wrong, women in naqab deserve the same justice women without naqab deserve.

To go through the justice system one has to accept all the mishaps and the ordeal that comes along. Being in court no matter what side you are on is an unpleasant sight, either embrace it or stay away from it. Court refuses to accomodate her because court is the higher authority. If you can believe in the court’s verdict and take matters to court, you can also abide by its rules and philosophy regarding the obvious.

I am sorry Krista but i haven’t read anywhere on this blog that I can not express my views about naqab. You can have your opinion about it, I can have mine.

http://muslimahmediawatch.org/ Fatemeh

@ Zahid: There’s nothing wrong with having your opinions about niqab; that’s not what we’re challenging. It’s your idea that the court should not be challenged that we take issue with. In the U.S. (and I’m assuming Canada as well), the government is elected by the people. The court is part of the government, and thus should accommodate its constituents. I’m not saying that the court should give up laws or let off murderers, but there is institutionalized discrimination here. Just because a court says something does not make it infallible.

http://getoutlines.wordpress.com Safiya Outlines

Salaam Alaikum,

Zahid – Courts, like all other public institutions are set up to serve the public, not the other way around. When courts are hostile places, which are not sensitive to the needs of those who are served by them, then it actually hinders justice.

One of the main reasons that the rape conviction rate is so hideously low worldwide (for example, in the U.K it’s only 6%) is because the legal process can be so traumatic for those seeking justice.

Other side

MMW writer,

I agree with your opinion that her religious freedom was voilated by the judge’s order, and that her level of belief was sufficient, given the Syndicat decision. My issue is with your evaluation of demeanour to assess credibility. Given that the Defendant is at risk of losing his liberty for a fairly long period of time, and that the stigma of being labeled a rapist is very high, shouldn’t the Defendant be entitled to every reasonable defense? Since other defendant’s will be able to see their accusers. You might consider it “silly facing one’s accuser” but the alleged accused is facing the possibility of go to prisoning, losing his family, his rights, his way of life. Please respected writers of MMW, do not assume he is already guilty. I’m not trying to devalue the possible harm to the victim, which I assume would be at least non-trivial, and probably very significant as well, but to suggest that the harm resulting from a jail term and a place in the sex-offender registry may be just as great for the defendant. Regardless of how effective examining her demeanor would be, the defendant should be entitled to use those techniques, should he choose to do so, given the gravity of the charges and the loss he faces.

Both the defendant and the accuser are possibly facing great losses ; the accuser’s right to freedom of religious practice and the various traumas of facing her alleged abuser. And the defendant’s right to reasonable defense against his loss of personal freedoms for a long time. My problem is, It is as if you assume that the defendant does not face emotional or mental trauma which includes the full punishment, the social stigma of prosecution and collateral consequences of criminal charges which will still affect the defendant even when proven innocent.

This woman deserves Justice but is this man also entailed to Justice?

Krista

@ Other side: Thanks for dropping by and for your comment. I appreciate your perspective, and I think it is important, as you said, not to assume already that the defendant is guilty. As you mentioned, the implications in terms of jail time and stigma could potentially be quite heavy, and it would certainly be terrible if someone faced those penalties because of being wrongfully convicted. I definitely don’t want to “assume that he’s already guilty” or to imply that it is “silly” to want to face his accuser.

I guess my own perspective is that I’m still not sure that showing the face of the witness really has much relevance in terms of the decision. There are a lot of cues related to demeanour that can be assessed through tone of voice and body language, even through expression in the eyes, and I’m not convinced that showing the rest of the face makes much of a difference. Demeanour is also, obviously, not the only way that people’s credibility is (or should be) judged.

Much more importantly, from what I’ve read, I’m not convinced that the “right to face one’s accuser” was meant to be taken literally in the sense of seeing that person’s face; I understand that statement to be more related to the right to *confront* one’s accuser, the right to [have one's lawyer] question them, etc. Understood in the sense I have just described, this right is still being fully protected.

But I’m no legal scholar, and the points that you bring up are obviously important too. My perspective on this might be different if I really thought that someone was likely to be wrongfully convicted based on the witness covering her face, and I have yet to be persuaded of that. However, as you said, there is a lot at stake for the defendant too, and he certainly deserves a fair trial, even if you and I might have different ideas about exactly what that looks like.

amber

This is not a matter of a religious necessity. The police can not afford to have to call in a female police officer every time a Muslim woman wearing a face mask gets pulled over for speeding or is involved in an accident. Do you not understand that “here” face masks are used during the day primarily only by criminals to hide their faces from being identified by the police. Therefore, showing the rest of the face is not reasonable

What if someone is a member of the Ku Klux Klan and they view it as their religion, Therefore, they should be allowed to wear their white hood in court just.

Mark my words this will be turned down because of two words in the Charter of Freedom and Rights “reasonable limits”. Are face veils reasobable in this society NO.

http://muslimahmediawatch.org/ Fatemeh

@ Amber: you realize you’re comparing a rape survivor to a criminal because she wears a piece of cloth across her face? You’re also comparing her to the KKK. That is unacceptable. Make sure to read our comment moderation guidelines, also, before you post next time.

Your KKK point also doesn’t hold ground, because while the group often twists Christian ideology to support their racial hatred, their group and its tenets themselves are not viewed as religious. While the niqab is not recognized as a requirement across the board, many scholars do support it, so there is documented Islamic theology in support of the niqab.

You also don’t give any reasons why you believe that face veils are not reasonable in this society or why her niqab is not a matter of religious necessity. You’re welcome to have an opinion, but you’d better back it up.

Mercedes

just a quick question…what was the final ruling for this case? or was there one yet?

Krista

@ Mercedes: According to this article: http://www.thestar.com/News/Canada/article/601912, the final decision about whether she can testify with niqab will be made based on court meetings happening this week. I think the Ontario Human Rights Commission (or something like that?) made a statement in her favour… but the final decision hasn’t been made yet. The actual sexual assault case will resume sometime after the decision is made on this issue.

@ Zahid: why would she let the situtaion lead to court in the first place?

She deserves justice just like anyone else, doesn’t she? If she has been sexually assaulted or raped, she deserves to put the man who is at fault in jail. Rape trials are often very sexist, insinuating that women “deserved” it or “were asking for it” because they were drunk or were dressed a certain way (those may not factor in here, but you know what I mean). They’re also very invasive and traumatic for the survivors of assault and rape. Religious interpretations aside, I can totally understand why a woman would want a physical barrier (cloth or otherwise) between her and her rapist.

But I think a big problem here is that the court refuses to accommodate. She could very well be identified in private by a female officer, which most women who wear niqab/scholars who support niqab would agree is legal and “halal” in this situation. The problem is that the judge has/will not consider this sort of accommodation, ruling in absolutes: “no niqab at all!”